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TMI Blog2025 (3) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... d up copy of the writ petition and impugned therein order disclosed as annexure-1. 4. List on 17th September, 2024." (emphasis supplied) 2. Mr. Mohanty, learned senior advocate appears on behalf of petitioner and Mr. D. Mohanty, learned advocate, Additional Government Advocate for State. Mr. Mishra, learned advocate, Standing Counsel appears on behalf of revenue. Upon the writ petition having had been moved on 17th September, 2024, we recorded our understanding in order made that day. Paragraphs 3 and 4 from said order are reproduced below. "3. We understand charge no. 3 to be, petitioner had utilized the goods purchased under Form-C for purposes other than generation of electricity, namely, transformation and transmission. In dealing with the charge the authority, in impugned order, relied on rule 13 in Central Sales Tax (Registration and Turnover) Rules, 1957. The goods dealt with under the charge are several, of which some have been accepted. The authority did not accept most of the goods as covered by rule 13 and found petitioner to be guilty of the charge, in respect of them. The authority is deemed to have found on facts. We are on judicial review of such findings. Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that all items mentioned in the charge also found mention under charge no. 3, except cement. Referring to the list attached, as mentioned in the second certificate of registration, he demonstrates, the list includes cement. He submits, cement was used for making foundation of the generating plant. 3. Moving on to the other chart he submits, it bears reference to articles/items of equipment purchased by his client for purpose of installation of the plant for generation of electricity. Generation includes transmission and distribution. He relies on judgment of coordinate Bench in National Aluminium Co. Ltd v. State of Orissa, reported in (1994) 93 STC 529 (Ori), paragraph-8 containing view expressed that transformation and transmission would obviously come within the ambit of distribution of electricity. Referring to said second certificate of registration he points out, it also includes transmission and distribution of electricity as mentioned therein. The judgment was not interfered with by the Supreme Court on revenue having filed for special leave to appeal. There can be no contention raised, to be entertained, regarding generation, distribution and transmission of electricity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inery, plant, equipment, tools, stores, spare parts, accessories, fuel or lubricants in the generation or distribution of electricity (so far this case is concerned). The item cement does not answer to the requirement of these provisions in as much as it is neither a raw material nor processing material nor machinery, plant, equipment, tools, stores, spare parts, accessories, fuel or lubricants, essential for the purpose of generation or distribution of electricity." (emphasis supplied) He moves on to subsequent part of the order dealing with steel. He submits, the analogy on cement was correctly drawn upon, to make the finding in respect of steel. 6. He relies on view taken by a Division Bench of this Court in Ipitata Sponge Iron Ltd. v. State of Orissa, reported in (1991) 71 CLT 132 and available at 1990 SCC OnLine Ori 23, paragraph 10 (SCC OnLine print). The paragraph is reproduced below. "10. There is substance in the submissions of the counsel for the opposite parties. Rule 13 clearly excluded cement, steel, etc., from the category of goods intended for use for manufacture or processing of goods. The petitioner, therefore, committed infraction of section 10 (d) of the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be said that building materials fall within this description. The High Court was, therefore, right in rejecting the claim of the Company in that behalf. (emphasis supplied) So far as charge no. 3 is concerned, Mr. Mishra relies on findings of the revisional authority. He submits, goods including road roller and cranes, pavement breaker and others were rightly held by the authority as not necessary for purpose of generation or distribution of electricity. They are not integrally connected for the purpose. He submits further on reliance of order dated 31st October, 2023 that said Court made it clear, all contentions as are left open to be decided by this Court. He relies on the set aside order dated 19th December, 2018 of coordinate Bench. Two of the concluding paragraphs are reproduced below. "We have considered the submissions and the point of contradiction or difference or the point of view which has been taken by the petitioner-assessee and the Department. While considering the matter, one thing we have to consider is that whether the machineries which are used are mandatory or optional for manufacturing process so that the same can be taken into consideration while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication... ... .... ...." 9. We have recorded submissions on, inter alia, the facts as would appear from above. We will first draw instruction from J.K. Cotton Spinning and Weaving Mills (supra). It was a case where there was deletion made to the registration certificate. Applicant, a public limited company engaged in manufacture and sale of cotton textiles, tiles and other commodities had moved the High Court against the deletion. Subject matter of the challenge was the deletions in respect of manufacture of tiles. Revenue has relied upon paragraph 11 in the judgment. We have laid emphasis on a sentence in the paragraph, which is again reproduced below. "... ... ... Building materials used as raw materials for construction of "plant" cannot be said to be used as plant in the manufacture of goods... .... ...." (emphasis supplied) This finding must be seen in context of facts in that case because in the paragraph itself the Supreme Court said, whether a building is 'plant' within the meaning of rule 13 is a difficult question, on which no opinion need be expressed. The facts were, the deletions made were in respect of items said as not necessary for use in the manufacture of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessories, fuel or lubricants, in the manufacture or processing of goods for sale, or 4 [in the telecommunications network or] in mining, or in the generation or distribution of electricity or any other form of power." Cement, petitioner says, was used for purpose of constructing the plant, in which there has been generation of electricity. Inter alia, 'plant' was separated from 'machinery' as an item in the rule by GSR no.1059 dated 29th October, 1958. 'Plant' became an independent item. It is to be seen whether, for purpose of generation of electricity there is necessity of a plant and if so, construction of it by use of, inter alia, cement. Petitioner's contention is, the plant was constructed after the registration certificate was obtained, on goods purchased by declaration on Form-C. There does not appear to be any dispute that petitioner did construct a plant, from where it commenced its generation of electricity. That being the position, we find the view taken, of cement not answering to the requirement of the provisions as being neither a raw material nor processing material nor machinery, plant, equipment, tools, stores, spare parts, accessories, fuel or lubricants essent ..... 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